Veteran denied benefits despite medical evidence

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Veteran denied benefits despite medical evidence

"[John's] bipolar disorder became evident at the time of his first psychiatric hospitalization in 1975.…"

-Robert Marks, M.D.

Part 2 of a 3 part series

Editor's note: In the previous edition of Frost Illustrated, we chronicled the mental health history of John, a Vietnam era U.S. Army veteran who said the U.S. Veteran's Administration is denying him benefits he is due. This week, we look at some of the key decisions government officials have made in his case and their unwillingness to grant him the full benefits he is seeking.

FORT WAYNE-For more than 20 years, Vietnam era U.S. Army veteran John (not his real name) had been plagued by a number of mental problems including a number of suicide attempts and threats against his family and homelessness. Eventually, with the help of a good woman he met at church, all that began to change. He even found a job at Hines VA hospital in Chicago.

But it all came crashing back down in 1997, when John walked into his job at the VA hospital with three loaded weapons threatening to kill his coworkers and himself. After his supervisor and the several hostages he had taken talked him out of the killing spree, John was admitted to the hospital's psychiatric ward. Staff discharged him from employment at Hines VA, declaring that he wasn't mentally competent to safely work.

John said that, while he was hospitalized, VA hospital staff had him sign paperwork that enabled him to get non-service connected disability. That meant he would be granted disability from that time on. But, his doctor began to do some digging and found that John had a history of mental illness that dated back to his first tour of duty in the U.S. Army.

In April 1999, Dr. Robert Marks, associate professor in the Department of Psychiatry and Behavioral Medicine at Northwestern University Medical School wrote in a treatment summary:

"[John] is a 45 y/o married, [African American] man living with his wife & chidren, employed in the past at the Hines VA. He has an episodic, yet chronic, psychiatric illness with prominent affective and intermittent psychotic symptoms spanning more than 20 years."

Marks had been the attending physician who diagnosed John with "Bipolar Disorder I, often called Manic-Depressive Illness," in 1996. He also treated John after the 1997 incident. The doctor apparently based his assessment that John's problems began in the 1970s while he was still in the military at least in part on medical records from Irwin Army Hospital, Fort Riley, Kan.

There were at least two 1973 entries indicating that John was suffering from mental related conditions, including a July 10 record indicating that he had "passed out during PT (physical training) and had been referred for "M.H. Consult" (mental health consultation). Another record from around the same time indicated that John had been admitted to the hospital with "no active disease" related "Globus Hystericus," a difficulty in swallowing associated with various mental illness when not caused by physical conditions.

John said he was unaware of his true mental health condition until 1996 when he first was treated by Dr. Marks. And, until the 1997 breakdown, he said he had no idea that the military had been aware of his condition apparently for 20 years. In light of that, John filed to have the Veterans Administration declare his bipolar disorder service connected and to compensate him retroactive back to his first separation in 1975-given that his doctor found evidence that John was suffering from the disorder while still in the military. But, in April 1999, representatives from the VA Regional Office in Chicago notified John that his claim for "service connection for bipolar disorder" was denied.

The bureaucratic process gets murky at this point, but somewhere along the way, John was granted benefits, but only with an effective date of June 14, 2000, ignoring evidence that his disorder started to manifest itself while he was still on active duty during the 1970s.

According to records from a 2003 Board of Veterans' Appeal (BVA) transcript, John did not immediately appeal that decision, but in 2000, again "claimed entitlement to service connection for a psychiatric disorder." In October, the regional office "determined that new and material evidence had been submitted to reopen the previously denied claim." But, "In an August 2001 rating decision, the [regional office] considered the substantive merits of the claim for service connection and determined that the veteran's psychiatric disorder had not been incurred in service."

Furthermore, the VA implied that if John had known earlier that he was suffering from a severe personality while in the military and being treated, he should have filed his claim upon separation from the service. But, he stated, he never had been told what was actually in his medical records-only that he daily was given medicine, which he testified military doctors told him were "vitamins" because he was suffering from a "vitamin deficiency."

John began the appeal process to protest that decision and even took his case to Illinois U.S. Representative Danny K. Davis. Among those supporting John in his bid to reverse the VA ruling was Dr. Marks, who wrote in an Oct. 12, 2001 letter to Congressman Davis:

"When [John] came under my care, he was an inpatient at the Edward J. Hines Jr. VA Hospital, where I was the unit chief of an adult psychiatric unit. At that time I examined him and reviewed his previous medical records. Although I cannot recall all the details of these records, I do recollect that the records existed. The records indicated that [John} had had symptoms consistent with bipolar disorder prior to the October 1996 hospitalization and that the diagnosis had gone unrecognized.…

"[John's] bipolar disorder became evident at the time of his first psychiatric hospitalization in 1975.…"

Dr. Marks also explained that John's problems with alcohol and cannabis abuse were "common with his diagnosis since bipolar disorder has a higher rate of comorbid substance use disorders than any other serious mental illness."

Meanwhile John also had submitted a claim for compensation indicating he was suffering from "sexual dysfunction" as "a residual of psychiatric medication provided by the VA." That claim was denied in February 2002 and John subsequently withdrew his appeal in that case.

Finally, in 2003 he filed another appeal with the Board of Veterans' Appeals (BVA) seeking entitlement to service connection for a psychiatric disorder. John also argued that by law, the VA had an earlier obligation to notify him of information necessary to substantiate a medical claim for benefits. The BVA ruled that John had submitted enough new and pertinent information to reopen his case and that, despite later changes in regulations, the VA did have a duty to provide a veteran with such information.

After accessing John's records dating back to 1973-including Dr. Marks' assessment that military medical records including "…the July 1973 reference to a 'nervous problem' represented a manifestation of bipolar disorder, from which the veteran had suffered since early adulthood"-Barry F. Bohan, veterans law judge for the BVA ruled that:

"The veteran's claim, is therefore, also supported by medical evidence of the in-service incurrence of a psychiatric disease, and medical evidence of a nexus between the in-service disease and current disability.… For these reasons the Board finds that the evidence supports the grant of service connection for bipolar disorder."

For a moment, it seemed John's nightmare ordeal to get the benefits he deserved was over, but that was not the case. The VA appealed the decision. Having moved to Indiana, John's case was sent to the VA's Indianapolis office. In June 2004, that office sent John a letter stating that his case was in "post-decision review process" and that his file would be checked "for completeness."

The battle continued until 2007 when John was granted a hearing at the VA regional office in Indianapolis. Again, the issue of why he didn't file for benefits earlier came up and John reiterated that he did not have access to the information and records he needed. According to a transcript from that meeting, Angela Malone, a hearing officer on the regional office's appeal team had this to say about those records:

"But I just want you to understand that service medical records are kept in a specific location for anybody who ever served in the military. We're talking millions, billions, trillions of records. Okay. Sometimes those records are misplaced and sometimes it could be years. We could put in a request for your records. They say we don't have them, but because we've put in a request, sometimes those records show up years later. It does happen.…"

And, while John said he understood mistakes can happen, he said he was floored when Malone told him:

"…What wasn't there yesterday could be there today and that's another reason why we have these type of hearings and proceedings because you never know what you may discover. It could take 48 years, it could be 58 years,…"

That's after he had already waited 30 years for some of his military medical records to show up.

Earlier this year, John said he received the biggest blow yet. After years of finding hidden or lost evidence that would support his case, in a document dated Jan. 10, 2008, the Indianapolis Regional Office of the Department of Veterans Affairs ruled:

"Although the evidence shows that your mental condition began during military service, there is no evidence showing that you are entitled to an effective date prior to June 14, 2000, the date that we received your reopened claim.…

"Although you stated that you believe you were incompetent and the VA had a duty to assist you during your period of incompetency, the evidence fails to show entitlement to an effective date prior to June 14, 2000, the date that we received your reopened claim. Based on these findings, the decision to deny entitlement to an earlier effective for entitlement to individual unemployability, prior to June 14, 2000 is affirmed."

In light of recent reports that U.S. military veterans are reporting psychological problems and committing suicide in record numbers, John said it's clear to him that too many people in the Veterans Administration and the rest of the U.S. government don't care about veterans after they've served their usefulness on active duty. John said he believes that particularly true when it comes to Vietnam era veterans, many of whom he said the government abandoned and left to die untreated for mental problems and homeless on the streets.